Flying Pigs to Precede Comprehensive Federal Internet Voting Regime in United States

The United States Postal Service Office of Inspector General released a national report last month finding that 84% of people surveyed expect drone deliveries to occur within the next ten years. Leading the international charge, Domino’s Pizza has already launched commercial drone deliveries in New Zealand. Assuming the resolution of various U.S. regulatory and socio-technical problems, it may be commonplace by the year 2030 for items to be shipped autonomously, up in the sky. In such a future, a breakfast ruined for lack of bacon is only a short drone flight away from remedy. So, as promised: flying pigs.

However, what appears to not be on the U.S.’s technology-dependent horizon is ubiquitous nationwide online election voting. What explains this?

With revolutionary ideas like drone deliveries, autonomous vehicles, and plans to colonize Mars already in the works, why shouldn’t all Americans anticipate voting online anytime soon? To be fair, thirty-two states have available some form of electronic ballot submission over the Internet, but these approaches are generally ad hoc uses of fax and email attachments. The type of comprehensive election voting procedure under consideration here – a federally implemented program so people can check a box, click submit, and be done – is not available and will not be for some time.

How would a federally-instituted voting scheme comport with notions of federal government powers in relation to state powers? In McCulloch v. Maryland, Chief Justice John Marshall derived a series of conclusions on the topic of federalism: the federal government’s power is limited, yet supreme in its sphere, and because it is created by all, it acts on the behalf of all and for all. For this reason, it is supreme. The essence of supremacy is the ability to remove all obstacles to action within its sphere. It follows that the Federal government can modify powers for subordinate governments, like the States, in order to clear the tenement to its own power. Here, the implication is that the Federal government may be able to implement a universal online voting regime across the nation.

Consider, too, that nearly everything is shifting towards using the connectivity of the Internet to facilitate convenience – shopping, banking, television, newspapers – why not voting?

Many countries have asked this question, but none have responded as decisively as Estonia, which has offered Internet voting (“i-voting”) since 2005. Indeed, several of Estonia’s elections have utilized its i-voting program, with more than 30% of all ballots cast online.

Looking at Estonia as an example, online voting carries the potential to afford some clear benefits over traditional ballot voting. These benefits include accessibility, efficiency, and convenience.

In particular, better access for citizens who cannot easily make it to a voting booth is desirable. In Nat’l Fed’n of the Blind v. Lamone, the Fourth Circuit Court of Appeals ordered Maryland elections officials to adopt a partially online voting procedure to assist blind voters. Per this system, voters are allowed to fill out, print, and send a PDF to election officials. Now consider the efficiency gains a fully online system could provide to the electorate, including overseas military members who endure a complicated legal process to vote in elections. Think of the economic advantages, realizing significant savings on paper ballots, voting machines, vote counters, and other material and labor expenditures that are the norm today.

Moreover, the convenience of online voting would conceivably increase voter turnout. Only 61.8% of Americans eligible to vote actually cast their vote in the 2012 election, a paltry showing. It makes intuitive sense that providing a new method for voting that is more readily accessible would lead to higher voter turnout and a greater realization of true democratic principles.

Not so fast, argues Daniel Bochsler, a University of Geneva PhD specializing in the effects of electoral systems on party systems. His 2010 study of Estonia’s 2007 elections argued that, “[instead] of attracting new voters . . . Internet voting mostly substituted for existing votes at the polls.” Of potentially even more concern is that, “instead of attracting social groups that usually abstain from elections, Internet voting has [mostly] attracted the same politically well-established groups.” That is, by mostly attracting wealthier voters with high levels of formal education, Internet voting actually “increased the social selectivity of the voting process.”

Taking a step back, think about the implications of a comprehensive federal online voting regime on today’s society. Similar to the concerns surrounding drones, Internet voting carries with it a host of socio-technical problems. Namely, “the security, privacy, auditability, and integrity of ballots cast over the Internet.” Federal government researchers have already spent over fifteen years and $100 million conducting experimental voting programs. The National Institute of Standards and Technology concluded that it is not currently possible to ensure the avoidance of these problems. Ultimately, elections could be opened up to an even greater probability of being stolen or completely thrown into disrepute. Until these challenges are overcome, Internet voting is not feasible.

One might still wonder why something seemingly straightforward like counting a vote is so much more problematic than making online purchases, using a Robo-Advisor for investments, or securing a home mortgage online. Scientific American explains:

“Whereas monetary transactions are based on a firm understanding of your identity, a vote is supposed to be anonymous. [With] bank trouble, investigators can trace a credit-card purchase back to you, but how can they track an anonymous vote? . . . [Banking] fraud goes on constantly [and is built in to the] cost of doing business. But the outcome of an election is too important; we can’t simply ignore a bunch of lost or altered votes.”

Ultimately, a comprehensive online voting regime in the United States is not off the table in perpetuity. The challenges to be met are significant, but not insurmountable. Still, it remains clear that the U.S. appears at least three election cycles away from across-the-board Internet voting.